


J LIBRA F CONGRESS.! 

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i UNITED STATES OF AMERICA. < 



IMPEACHMENT OF THE PRESIDENT. 



OPINION 



ME. YXCKEKS, OF MABYLAND, 

IN THE SENATE OF THE UNITED STATES, MAY 11, 1868. 






OPINION 

OF 

GEORGE VICKERS, OF MARYLAND, 

ON 

IMPEACHMENT OF THE PRESIDENT, 



The Constitution secures to the President of the United States the nomina- 
tion of civil officers, and their appointment, if the Senate shall advise and con- 
cur. He is the initiating and acting power, and gives character and form to the 
proceeding before it is presented to the consideration of the Senate, which body 
has no power to present the name of any one to the President as an object of 
official favor. The act of 17S9, which created the Department of War, does 
not limit the tenure of the office of the Secretary of that department, but assigns 
such duties as shall be enjoined upon and entrusted to him by the President, 
agreeably to the Constitution. 

Soon after the government went into operation, the power of removal from 
office was exercised by the Executive during the session as well as in the recess 
of the Senate ; the commissions to the Secretaries and many other officers con- 
tained the statement that they held at the pleasure of the President. A prac- 
tice immediately arose and prevailed, and was continued down to the year 1867, 
of removal from office by the Executive ; the power of removal was claimed as 
an incident to that of appointment, and as essential to a faithful execution of the 
laws, on the ground that unless the President possessed it he could not remove 
a faithless officer who might be engaged in obstructing the execution of the laws 
or in embezzling the public funds ; the duty of the President under the Con- 
stitution, to take care that the laws should be faithfully executed, could not be 
efficiently discharged unattended by the power of removal. Although differ- 
ences of opinion may have existed upon this as well as other provisions of that 
instrument, yet the practice uninterruptedly continued, with the implied assent 
of the legislature, for upwards of 15 years, and constituted a legislative con- 
struction which was affirmed by different Attorney Generals of the United 
States, whose attention had been specially called to the subject. 

The acquiescence by Congress in that construction, whether originally cor- 
rect or not, was fully sufficient to justify President Johnson in its exercise. 
Although it may be termed an implied power, it is as valuable and essential to 
a co-ordinate department as an express grant. The power to create banks, and 
of erecting custom and light-houses, is derived by implication. The concurrent 
authorities of Kent and Story refer to the power of removal of officers by the 
President, as established by usage and acquiescence, as well as by the opinions 
of the most eminent lawyers, judges, and statesmen, as the settled construction 
of the Constitution. It was advocated and practiced by Jefferson, Madison, 
Monroe, Jackson, Van Buren, and other Presidents, down to Mr. Johnson. 
The elder Adams removed Mr. Pickering, Secretary of State, during the ses- 



sion of Congress, and without consulting it ; he requested Mr. Pickering to 
resign, and on his refusal removed him by a peremptory order, and nominated 
John Marshall his successor. The right of Mr. Adams does not seem to have 
been questioned. The act of 17S9, in its second section, provides for the 
appointment of a chief clerk in the Department of War, who, whenever the prin- 
cipal officer, the Secretary, shall be removed by the President, or in any other 
case of vacancy, shall have the charge and custody of all the records and 
papers in the office. The language of this act recognizes an existing right in 
the I 'resident, under the Constitution, to remove a Secretary at his discretion. 
The debates in Congress in 1789, by the ablest men of the nation, show that the 
power of removal from office was conceded to be in the President, and the bills 
establishing the departments and regulating the duties to be performed were 
framed purposely to conform to that construction of the Constitution. Thus, in 
the act relating to the Treasury Department, the seventh section provides that the 
assistant shall take charge of the records, books, and papers " whenever the 
Secretary shall be removed from office by the President of the United States, 
or in any other case of vacancy." In the same year the Department of For- 
eign Affairs was created, and in the second section of the act it is declared that 
there shall be appointed an inferior officer, to be called the chief clerk, and who, 
" whenever the said principal officer shall be removed from office by the Presi- 
dent of the United States, or in any other case of vacancy, shall, during such 
vacancy, have the charge and custody of the records," &c. These three statutes 
do not confer the power of removal, but they treat it as existing in the executive 
department, and were designed and draughted to exclude the presumption of 
implication of a grant of that power to the President by legislative authority 

The act of the 2d March, 1867, regulating the tenure of civil offices, and 
passed over the President's veto, was intended to alter and change the settled 
construction of the Constitution, and to empower the Senate to continue a cabi- 
net officer in commission against the will and wishes of the Executive, and to 
restrain and check his wonted power of removal ; the statute trenched upon and 
materially impaired what the President and his legal advisers, including the 
Secretary of War, believed and declared to be a constitutional right and prero- 
gative of the executive department. The President having sworn to " preserve, 
protect, and defend the Constitution of the United States," considered it to be 
his duty, as custodian of the executive department, to treat the act as unconsti- 
tutional and to exert the power claimed and exercised by all his predecessors. 
The statute of 2d March, 1867, essays to create an offence of a high misde- 
meanor in any one who may attempt to violate it, and for this effort of the Presi- 
dent to maintain the integrity of his department until the judiciary, the only 
arbiter to determine a question of such magnitude in the last resort, should 
decide, the impeachment is predicated. 

If one department shall attempt or do what another department shall believe 
to be an essential and vital encroachment upon its high powers or functions, the 
law of self-defence is as applicable as it would be to a personal attack by one 
upon another. It cannot be expected that the executive department is to be the 
agent for executing a statute upon itself which is to dismember and deprive it of 
half its vigor or vitality ; the duty enjoined upon the President to see that the 
laws arc executed was not designed to operate in such a case, for the practical 
recognition of such a principle might be used to work the destruction of the 
whole frame of the government and make the Constitution its own destroyer. 
The allegation that if t bo 1 'resident shall be permitted to contravene a statute 
which be and his cabinet believe invades and infracts the constitutional limits 
and powers of the department over which he presides, and feels bound to pre- 
serve, thai be may be at equal liberty to disregard any law of different character 
and object, bas no more force than that theright of self-defence maybe extended 
to justify an individual in assaulting every person he may chance to meet. If 



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it is in the lawful competency of Congress to punish the infraction of every law 
by pains and penalties, and to deprive the courts of the United States of their 
jurisdiction over the same, Congress would soon become omnipotent, the co-or- 
dination of the departments be destroyed, and the structure and genius of our 
government be changed by the action of one department. 

It may well be questioned if the cabinet officers who were appointed by a 
former President, and not reappointed in a second term, cither by that Presi- 
dent or by Mr. Johnson, his successor, were intended to be embraced by the 
act of 2d March, 1S67 ; if it were a matter of doubt the accused would be 
entitled to the benefit of it. From a careful examination of the act, taken in 
connection with the avowed purpose of it, as declared in the Senate and House 
of Representatives, by the committees of conference, at the time of its final 
passage, my opinion is that such officers were not, nor intended to be, included 
in it. Entertainiug the views I have expressed, I do not consider that the first 
and eighth articles of impeachment are sustained. 

The act of Congress of 1795, ch. 21, provides for the filling of all vacancies 
by the President, by appointments ad interim for a period not exceeding six 
months. The power of removal or suspension necessarily carries with it the 
right to fill the vacancy temporarily on the ground of public necessity ; the 
exigency may exist at any time, whether during the session or in the recess of 
the Senate, and the public interest and service may require the promptest 
action by the President. The acts of 1863 and 1867 do not, by implication, 
repeal the cases provided for and covered by the act of 1795, which embraces 
all cases of vacancy from whatever cause, and authorizes ad interim employ- 
ments, but only such as are occasioned by death, resignation, absence or sick- 
ness, leaving the vacancies occasioned by removal and expiration of commission 
unrepealed. The act of 1S67 regulating the tenure of certain civil offices, by 
its second section, empowers the President to fill vacancies which may happen 
during the recess of the Senate, by reason of death or resignation, and in such 
cases to grant commissions, which shall expire at the end of the next session 
thereafter, but makes no provision for filliug vacancies which may occur during 
the session of the Senate, leaving such to be filled under existing laws and the 
usages of the department. The eighth section of the tenure-of-office act declares- 
that whenever the President shall, without the advice and consent of the Senate, 
designate, authorize or employ any person to perform the duties of any office, 
he shall notify the Secretary of the Treasury, &e. This recognizes the right of 
the President to make ad interim appointments without the consent of the 
Senate. This class of appointments is not the same mentioned in the third section 
of that act, because he is authorized by that section to issue commissions to 
expire at the end of the next session; but in the eighth section it is stated to 
be a mere designation or employment of some person to perform the duties of 
an office. According to usage, from the necessity of the case, and the act of 1795, 
unrepealed in part by 1S63 or the act of 1867, the President had the power to 
designate General Thomas to perform, for a brief period, the duties of the Depart- 
ment of War. To avoid circumlocution I have sometimes used the word 
appointment, instead of designation or employment in connection with ad 
interim duties, but an appointment to office, legally and technically, has three 
essential elements : 1. A nomination by the President. 2. A confirmation or 
approval by the Senate. 3. A commission signed, sealed, and delivered to the 
appointee. A concurrence of all is necessary to its consummation. The 
designation of a person to take possession and fulfil the duties is but for a 
temporary purpose, till a suitable successor can be found and his nomination 
sent to the Senate; the public interest may demand such a course of action. 
The proceedings in this case abound with instances of ad interim employments, 
directed by all the Presidents from Mr. Adams (the elder) to Mr. Johnson, 
including President Lincoln. The designation of General Thomas was on the 



6 

21st February, and the nomination of Mr. Ewing was sent to the Senate on the 
22d February, but in consequence of an early adjournment, and the next day 
being the Sabbath, it was not actually received by the Senate till Monday, the 
24th of that month. But if the President, the Attorney General, and other 
cabinet officers were mistaken in their construction of the law, which I do not 
think, such an error was a venial one, and cannot properly be considered a high 
crime or high misdemeanor. 

But if none of the laws alluded to authorized the ad interim appointment of 
General Thomas, yet, if Mr. Stanton's case is not covered by the first section of 
the acl of March 2, 1S67, called the tenure-of-office law, the 2d article and others 
into which it enters are not subjects of impeachment. Mr. Stanton was appointed 
by Mr. Lincoln in 18G2, during the first term of his Presidency ; his term 
ex pired with Mr. Lincoln's, as definitively as if the latter had not been re-elected ; 
he was not reappointed either by Mr. Lincoln or by President Johnson, and 
only held by courtesy and sufferance. The month allowed to the cabinet offi- 
cers appointed by Mr. Johnson and confirmed by the Senate does not apply to 
officers appointed by Mr. Lincoln, and who held no legal term under President 
Johnson. The latter, therefore, committed no misdemeanor in designating Gene- 
ral Thomas to perform the duties till a regular nomination could be made : first, 
because Mr. Stanton's case is not protected by the first section of the act of 
1S67, all the subsequent sections having reference to the cases only which are 
included in that section — the sixth section, relating to ad interim appointments, 
expressly declaring them to be "contrary to the provisions of this act," 
and if not within the first section.it cannot be within the sixth; secondly, 
because no other act forbids such appointments ; and thirdly, because it was in 
conformity to the settled practice of the executive department since its forma- 
tion, acquiesced in by all the departments, and necessary to a proper and faith- 
ful execution of the laws. In any aspect of the case the second and third arti- 
cles are not maintainable. With the views already expressed, that the Presi- 
dent is not guilty of the principal charge, as modified and extended over other 
articles, it follows that he is not punishable on the charge for conspiring to do 
the acts mentioned in the fourth, fifth, and seventh articles, and especially not 
in the absence of all proof of any such conspiracy. The sixth article charges a 
conspiracy to seize and take by force the property of the United States in vio- 
lation of the conspiracy act of July, 1861 . This statute does not, in my opinion, 
apply to the removal of an officer under claim of constitutional right ; besides, 
no proof was offered of any authority from the President to use force, (jione was 
used,) and no legitimate inference of such an intention can be drawn under an 
act penal in its character when the presumptions are favorable to the citizen, 
and especially to a high public functionary of the government in the discharge 
of official duty. The ninth article, which alleges an attempt to seduce an officer 
of the army from his duty to promote sinister purposes of the President, appears 
to be wholly unsupported by proof. The commander-in-chief has an undoubted 
right to consult with his subordinates, to inquire into the disposition of the mili- 
tary forces, and to express opinions ; the relation between them precludes the 
presumption of an unlawful purpose in making proper inquiries and communica- 
tions. In such a ease the charge should be expressly proved; but there was 
not only no evidence offered tending to prove it, but a laudable motive was 
proved by the Secretary of the Navy, who suggested to the President the pro- 
priety of making the investigation. 

The tenth supplemental article is in reference to certain public speeches of the 
President, and charges that they are high misdemeanors in office. These 
speeches were made in a private, and not in an official, capacity, and however 
injudicious some may think portions of them, and to be regretted, I know of no 
law which can punish Mr. Johnson with a removal from office because they 
wen; made. As we have no law to punish those who may indulge in political dis- 



cussions, it cannot reasonably be expected tbat the President should be removed 
for exercising a privilege enjoyed by every American citizen ; the first amend- 
ment to the Constitution declares that Congress shall pass no law abridging the 
freedom of speech or of the press. 

The eleventh article is anomalous, indefinite, and liable to the objection of mul- 
tiplicity. If it were possible to put it in the form of an indictment or of a 
declaration in a civil action, it would be quashed on motion by a court of law. 
The first item or paragraph is not in the form of a charge, but is the recital of 
a speech contained in the tenth article and appears to be only introductory, 
or alleged as inducement to a charge which follows, viz: that the President, in 
pursuance of said speech made in August, 1SG6, attempted to prevent the execu- 
tion of the tenure-of-office act, passed on the 2d March, 1867 ; then follows a 
vague allusion to the means by •which he made the said attempt, to wit, on the 
21st February, 1868, by unlawfully devising, contriving, and attempting to 
devise and contrive, means to prevent E. M, Stanton from forthwith resuming 
the functions of the office of Secretary of War, which had been peaceably and 
quietly resumed on the 13th January, 1868, about five weeks prior to the alleged 
contrivances, as appears by Mr. Stanton's affidavit to procure a warrant for 
General Thomas's arrest, and also by the first article of impeachment. The 
other means are to prevent the execution of the act making appropriations for 
the support of the army — of which no proof was offered except that in relation 
to the ninth article in reference to General Emory's interview with the Presi- 
dent. The last means charged are to prevent the execution of an act to pro- 
vide for the efficient government of the rebel States, passed 2d March, 1867 ; 
the only evidence introduced was a telegram to Governor Parsons, dated several 
weeks prior to the passage of the said act alleged to be violated. This 
eleventh article seems to be made up by uniting fragments or portions of other 
articles ; if separately the articles in full are not sustained, the joining together of 
some of their disunited parts cannot impart to them additional strength or vitality. 
There is no proof of any connection between the speeches referred to and the 
tenure-of-otiLce act, nor between that act or any alleged violation of it and the 
means and contrivances imputed to the President. It was contended on the 
part of the prosecution that the act of 17S9, and not the Constitution, conferred 
upon the President the power of removal from office and separated that power 
from that of appointment. The act of 1867 does not essay to punish a removal 
under the act of 1789 unless made in the recess of the Senate, and as Mr. Stanton's 
removal was during the session of that body, the prohibition of the act is not 
applicable. The act of 17S9 is general, and not confined in its operation to the 
recess of the Senate or to its sessions ; its language is, " whenever the said 
principal officer (the Secretary being meant) shall be removed from office by the 
President of the United States," the inferior officer shall have charge of the 
records, books, and papers appertaining to the department. 

A President and his cabinet may be called upon to examine and determine 
the meaning, scope, and operation of statutes they may be required to execute 
materially affecting the powers, duties, and practice of the executive department 
of the government. Judgment is necessai - ily involved in that examination and 
consideration. If, after a candid and diligent investigation and mature delib- 
eration, the President acts upon the conclusion thus formed, can it be contended 
that for doing so he is guilty of a high crime or misdemeanor and punishable by 
removal from office ? There must be some wilful and manifest abuse of author- 
ity, usurpation, or corruption in such a case to justify a proceeding so degrading 
in its character and consequences. If Congress, by legislation of two-thirds, 
after the exercise of the veto by the Executive, should assume the power of 
making appointments to office, irrespective of his light of nomination, of nego- 
tiating and confirming treaties, of diminishing his compensation during the term 
for which he was elected, can it be said that he would have no right to judge of 



8 

the constitutionality of these acts ? and, if he should refuse to regard them, to 
be subjected to impeachment and removal, as well as to fine and imprisonment, 
although they attempted to abstract the essential attributes of his office and 
reduce the department to a subordinate and inferior condition ? Surely such a 
proposition could not be seriously advocated. But further, suppose that Congress 
by its acts should grant titles of nobility and require the President to issue com- 
missions to perfect them, or pass bills of attainder or ex post facto laws, or lay 
a capitation tax without reference to the census, and devolve the execution of 
the statutes upon the President ; shall he be bound, regardless of his oath to 
protect and defend the Constitution, to execute them against his own convic- 
tions and against the unanimous opinion and advice of the Attorney General and 
his other constitutional advisers ? If in any case the right of judgment is to be 
exercised, no criminality can be legally imputed for its honest exercise, though 
the conclusion may be erroneous. 

For these reasons, independent of those already assigned, and from a careful 
consideration of the evidence adduced and of the circumstances of the case, I 
do not think that the first eight and the eleventh articles can be maintained. 



